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M21-1, Part IV, Subpart ii, Chapter 2, Section K – Other Compensation Considerations

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4
5

1.  Compensation for Paired Organs or Extremities


Introduction

This topic contains information on compensation for certain paired organs or extremities, including

Change Date

May 13, 2015

IV.ii.2.K.1.a.  Basis for Awarding Compensation for Certain Paired Organs or Extremities Under 38 U.S.C. 1160

Compensation is payable under 38 U.S.C. 1160 for disabilities involving certain paired organs or extremities, one service-connected (SC) and the other non-service-connected (NSC), provided the NSC disability is not the result of the Veteran’s own willful misconduct.
References:  For more information on

IV.ii.2.K.1.b.  Criteria for Establishing Entitlement

Consider compensation under 38 U.S.C. 1160 for the following:
  • impairment of vision  in one eye as a result of SC disability and impairment of vision in the other eye as a result of NSC disability
    • rated at a visual acuity of 20/200 or less in each eye, or
    • with a peripheral field of vision for each eye of 20 degrees or less.
  • loss, or loss of use (L/LOU), of one kidney as a result of SC disability and involvement of the other kidney as a result of NSC disability
  • deafness compensable to a degree of 10 percent or more in one ear due to SC disability, and deafness that meets the provisions of 38 CFR 3.385in the other ear due to NSC disability
  • L/LOU of one hand or one foot as a result of SC disability and L/LOU of the other hand or foot as a result of NSC disability, and
  • permanent SC disability of one lung rated 50 percent or more disabling, in combination with NSC disability of the other lung.
Note:  Compensation may be paid under 38 U.S.C. 1160 if compensation is being paid for one of the aforementioned conditions under 38 U.S.C. 1151 and there is manifestation of the specific NSC disability under 38 U.S.C. 1160.

IV.ii.2.K.1.c.  Effective Dates for Provisions of the Law

Use the table below to determine effective dates for the provisions of law that created the criteria establishing entitlement to compensation under 38 U.S.C. 1160.
The criteria for establishing entitlement based on …
Became effective …
  • impairment of vision in one eye due to SC disability, and
  • impairment of vision in the other eye due to NSC disability
  • August 28, 1962, for blindness in each eye, and
  • December 26, 2007, for
    • visual acuity of 20/200 or less in each eye, or
    • a peripheral field of vision for each eye of 20 degrees or less.
  • L/LOU of one kidney due to SC disability, and
  • involvement of the other kidney due to NSC disability
  • August 28, 1962, for severe involvement of NSC kidney, and
  • October 28, 1986, for any involvement of NSC kidney.
  • total deafness in one ear due to SC disability, and
  • total deafness in the other ear due to NSC disability
December 1, 1965.
  • deafness compensable to a degree of 10 percent or more in one ear as a result of SC disability, and
  • deafness in the other ear that meets the provisions of 38 CFR 3.385 as a result of NSC disability
December 6, 2002.
  • L/LOU of one hand or foot due to SC disability, and
  • L/LOU of the other hand or foot due to NSC disability
October 28, 1986.
Note:  Entitlement to special monthly compensation (SMC) for these disabilities under 38 U.S.C. 1114(t) was effective October 1, 1978, through October 27, 1986.
  • permanent SC disability of one lung, rated 50 percent or more disabling, and
  • NSC disability of the other lung
October 28, 1986.
Reference:  For more information on the history of SMC for certain paired organs, see M21-1, Part IV, Subpart ii, 2.I.

IV.ii.2.K.1.d.  Eligibility for Other Benefits Based on Paired Organs or Extremities

Entitlement to disability compensation for a Veteran based on paired organs or extremities under 38 U.S.C. 1160 creates eligibility for the following benefits
  • Dependency and Indemnity Compensation (DIC), and
  • Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35.
Note:  Compensation entitlement under 38 U.S.C. 1160 does not create entitlement to
References:  For more information on

2.  Disability or Death From Use of Alcohol


Introduction

This topic contains information on disability or death from use of alcohol, including

Change Date

May 23, 2018

IV.ii.2.K.2.a.  Willful Misconduct

The simple drinking of an alcoholic beverage in and of itself is not willful misconduct.  If deliberate intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of willful misconduct.
Reference:  For more information on willful misconduct, see

IV.ii.2.K.2.b.  Alcoholism as a Primary Disability

Alcoholism as a primary disability is not a basis for granting entitlement to or increasing compensation or Veterans Pension under the laws administered by the Department of Veterans Affairs (VA).

IV.ii.2.K.2.c.  Definition: Alcohol Abuse

Alcohol abuse is the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability or death to the user.
Reference:  For more information on the definition of alcohol abuse, see 38 CFR 3.301(d).

IV.ii.2.K.2.d.  Alcoholism Secondary to an SC Disability

Where there is sufficient medical evidence establishing that an alcohol abuse disability is secondary to or a symptom of an SC disability, and where the alcohol abuse disability is not due to willful misconduct, then a Veteran may establish service connection (SC) for the alcohol abuse disability on a secondary basis.  Establish SC under 38 CFR 3.310(a) for any diseases or disabilities resulting from alcohol abuse, if alcohol abuse is determined to be secondary to an SC disability.
Example:  A Veteran is SC for a chronic back disability  He claims SC for alcohol abuse as secondary to the back disability.  The VA examination diagnoses alcohol abuse as secondary to the back disability, noting that the Veteran experiences chronic, intractable back pain and has utilized alcohol for treatment of the pain to the point that he is now alcohol-dependent.  Award SC for alcohol abuse secondary to the SC back disability.
Reference:  For more information on establishing SC for drug abuse secondary to or as a symptom of an SC disability, see Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001).

IV.ii.2.K.2.e.  Alcoholism Due to Personality Disorders

Do not consider personality disorders characterized by developmental defects or pathological trends in the personality structure as underlying psychiatric diseases for the purpose of secondary SC in compensation claims.
Alcoholism due to personality disorders
  • may not be the basis for granting or increasing disability compensation, but
  • may be the basis for a rating of incompetency.

IV.ii.2.K.2.f.  Claims Filed Before August 13, 1964, Involving the Secondary Effects of Alcohol

The secondary effects of alcohol were considered of willful misconduct origin before August 13, 1964.
Do not award benefits under 38 CFR 3.114(a) prior to August 13, 1964, for the secondary effects of alcohol.

IV.ii.2.K.2.g.  Claims Filed Between August 13, 1964, and October 31, 1990, Involving the Secondary Effects of Alcohol

Organic diseases shown by substantiating evidence as a secondary result of the use of alcohol as a beverage, whether out of compulsion or otherwise, were not considered to have been the result of willful misconduct in claims filed between August 13, 1964, and October 31, 1990.
Note:  Secondary results, such as cirrhosis of the liver, gastric ulcer, peripheral neuropathy, or chronic brain syndrome
  • sometimes appear because of indulgence in alcohol, and
  • may have been the basis for payment of compensation or Veterans Pension, whether attributable to the chronic use of alcohol or other causes, under regulations then in effect.

IV.ii.2.K.2.h.  Claims Filed After October 31, 1990, Involving the Secondary Effects of Alcohol

The awarding of SC for secondary disabilities or death resulting from alcohol or drug abuse is prohibited effective November 1, 1990, under the provisions of Public Law (PL) 101-508.
Do not consider disabilities or death that result from the abuse of alcohol during active service to have been incurred in the line of duty.  However, under Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001), where there is sufficient medical evidence establishing that the alcohol or drug abuse disability is secondary to, or is a symptom of SC disability, and where the alcohol or drug abuse disability is not due to willful misconduct, then a Veteran may establish SC for the alcohol or drug abuse disability on a secondary basis.
The Federal Circuit, in Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001), held that38 U.S.C. 1110, precludes payment of compensation in only two situations
  • primary alcohol abuse disabilities that arise during service, or
  • secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse.
The Federal Circuit defined “primary” as meaning an alcohol abuse disability arising during service from voluntary and willful drinking to excess.  In addition, substance abuse may be a symptom of worsening of an SC condition resulting in a higher rating for that condition.
Important:  Do not
  • sever SC that was properly established under regulations  in effect prior to November 1, 1990, or
  • award an increase in compensation for the secondary effects of alcohol based on any claim received after October 31, 1990, including a claim
    • for an increased evaluation, or
    • to add a dependent.
Note:  Cost-of-living increases, for which no claim is required, may be paid.
Reference:  For more information on line of duty and alcohol abuse, see

IV.ii.2.K.2.i.  DIC Based on Death Resulting From an Alcohol-Related Disease or Disability

DIC may not be granted based on death in service if the
  • death resulted from an alcohol-related disease or disability, and
  • an original or reopened claim is received after October 31, 1990.

IV.ii.2.K.2.j.  Resolving Reasonable Doubt

Disabilities generally attributable to alcohol abuse may be due to other causes.
Do not deny a claim for SC for a disability on the basis of being related to alcohol abuse unless a preponderance of the evidence shows that the disability is primarily due to alcohol abuse.
Resolve reasonable doubt in favor of the claimant.
Notes:
  • It is not always possible to determine the cause of a disease or disability.
  • Any indication that a condition is the result of alcohol abuse may be rebutted by evidence showing some other cause.
Reference:  For more information on application of the reasonable-doubt rule in compensation cases, see

3.  Disability or Death From Use of Drugs


Introduction

This topic contains information on disability or death from use of drugs, including

Change Date

May 23, 2018

IV.ii.2.K.3.a.  Willful Misconduct

Consider disability or death the result of willful misconduct when the evidence shows
  • drugs were used to enjoy or experience their effects, and
  • drug usage resulted proximately and immediately in disability or death.
The progressive and frequent use of drugs, other than for a recognized therapeutic purpose, which results in addiction, is considered willful misconduct.
Note:  The following will not be considered willful misconduct
  • isolated and infrequent use of drugs by itself
  • use of drugs for therapeutic purposes, or
  • use of drugs or addiction to drugs resulting from SC disability.
Reference:  For more information on willful misconduct due to drug usage, see 38 CFR 3.301(c)(3).

IV.ii.2.K.3.b.  Definition:  Drug Abuse

Drug abuse is defined by VA as
  • the use of illegal drugs (including prescription drugs that are legally or illicitly obtained)
  • the intentional use of prescription or non-prescription drugs for a purpose other than the medically-intended use, or
  • the use of substances other than alcohol to enjoy their intoxicating effects.
Reference:  For more information on drug abuse, see 38 CFR 3.301(d).

IV.ii.2.K.3.c.  Willful Misconduct and the Secondary Effects of Drug Usage Prior to November 1, 1990

Organic diseases and disabilities shown by substantiating evidence as a secondary result of the chronic use of drugs, or infections coinciding with the injection of drugs, were not considered to have been the result of willful misconduct in claims filed prior to November 1, 1990.

IV.ii.2.K.3.d.  Claims for SC for Secondary Effects of Drug Usage Filed After October 31, 1990

The grant of SC for secondary disabilities or death that results from the abuse of drugs is prohibited effective November 1, 1990, under the provisions of PL 101-508.
Do not consider disabilities or death resulting from the abuse of drugs during active service to have been incurred in the line of duty.
Important:  Do not
  • sever SC that was properly established under regulations previously in effect prior to November 1, 1990, or
  • award an increase in compensation for the secondary effects of drug use based on any claim received after October 31, 1990, including a claim
    • for an increased evaluation, or
    • to add a dependent.
Note:  Cost-of-living increases, for which no claim is required, may be paid.
Reference:  For more information on line of duty and drug abuse, see

IV.ii.2.K.3.e.  Drug Abuse Secondary to an SC Disability 

Where there is sufficient medical evidence establishing that a drug abuse disability is secondary to or a symptom of an SC disability, and where the drug abuse disability is not due to willful misconduct, then a Veteran may establish SC for the drug abuse disability on a secondary basis.  Establish SC under 38 CFR 3.310(a)for any diseases or disabilities resulting from drug abuse, if drug abuse is determined to be secondary to an SC disability.
Example:  A Veteran is SC for posttraumatic stress disorder (PTSD).  He claims SC for drug abuse as secondary to the PTSD.  The VA examination diagnoses drug abuse as secondary to the PTSD, noting that the Veteran relies on marijuana for treatment of his PTSD symptoms.  Award SC for drug abuse secondary to SC PTSD.
Reference:  For more information on establishing SC for drug abuse secondary to or as a symptom of an SC disability, see Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001).

4.  Disability or Death From Use of Tobacco Products      


Introduction

This topic contains information on disability or death from use of tobacco products, including

Change Date

September 15, 2011

IV.ii.2.K.4.a.  Prohibition Against Direct SC

Effective June 9, 1998, the awarding of SC for a disability or death that results from the Veteran’s use of tobacco products in service is prohibited.
Reference:  For more information, see 38 CFR 3.300(a).

IV.ii.2.K.4.b.  Disability Secondary to a Tobacco-Related SC Disability

Under 38 CFR 3.300(c), the establishment of SC for a disability that develops as a result of a tobacco-related disability, for which SC was previously awarded based on the Veteran’s use of tobacco products during service, is prohibited, if such a claim for SC is received on or after June 9, 1998.

IV.ii.2.K.4.c.  An Example of a Claim for a Disability Secondary to a Tobacco-Related SC Disability

Facts:  SC for nicotine dependence resulting from tobacco use that began during service was established in 1997.  In April 2003, the Veteran claimed that his chronic obstructive pulmonary disease was secondary to SC nicotine dependence.
Result:  Deny SC for chronic obstructive pulmonary disease.
Rationale:  Although SC was previously established for nicotine dependence, under 38 CFR 3.300(c) the establishment of SC for a disability that is secondary to a tobacco-related SC disability is prohibited, because the claim was filed after June 9, 1998.

IV.ii.2.K.4.d.  Secondary SC for Disability or Death Related to Tobacco Use After Service

In VAOPGCPREC 6-2003, General Counsel held that secondary SC may be established for disability or death related to tobacco use after service that is the result of or aggravated by SC disability unrelated to tobacco use.

IV.ii.2.K.4.e.  Considering Claims for Secondary SC

The table below shows the steps involved in considering claims for secondary SC for disability or death related to tobacco use after service.
Step
Action
1
Did SC disability cause the Veteran to use tobacco products after service?
  • If yes, go to Step 2.
  • If no, deny the claim.
2
Was the use of tobacco products after service a substantial factor in causing or aggravating the disability claimed as secondary or in causing or contributing to death?
  • If yes, go to Step 3.
  • If no, deny the claim.
3
Would the additional disability or death have been prevented but for the use of tobacco products caused by SC disability?
  • If yes, award SC for the secondary disability or death.
  • If no, deny the claim.

IV.ii.2.K.4.f.  An Example of a Claim for Secondary SC for a Disability Related to Tobacco Use After Service

Facts:  A Veteran with an SC evaluation for PTSD claims secondary SC for tobacco-related emphysema.  He states that he started smoking cigarettes after service because of anxiety related to PTSD.
Result:  Award SC for emphysema on a secondary basis if it is shown that
  • symptoms of PTSD resulted in the Veteran’s use of cigarettes
  • cigarette smoking caused by PTSD was a substantial factor in causing (or aggravating) emphysema, and
  • emphysema (or an increase in its severity) would not have occurred if the Veteran had not smoked cigarettes.
Rationale:  Per VAOPGCPREC 6-2003, secondary SC may be awarded for disability related to tobacco use after service that is the result of or aggravated by SC disability unrelated to tobacco use.

5.  Diving-Related Disabilities


Introduction

This topic contains information on disabilities that may be related to diving, including

Change Date

May 13, 2015

IV.ii.2.K.5.a.  Diving Techniques and Associated Risks

Diving techniques include the following:
  • free (breath-hold)
  • snorkeling
  • SCUBA (self-contained underwater breathing apparatus)
  • surface supplied air and mixed-gas bounce diving, and
  • saturation diving.
Saturation diving is essentially defined as a diver having been at a depth long enough (typically 24 hours or longer) for tissues to have absorbed the maximum amount of gas possible for that particular depth, so that gas equilibrium has been achieved.  Saturation divers live for long periods of time in a chamber pressured to the desired depth, and work in an extremely harsh, physically demanding environment.
Bounce diving commonly refers to any non-saturation dive.  Typically, multiple bounce dives of different depths and duration are conducted in a single day with repeated decompressions.
Under certain circumstances, any type of diving may result in
  • decompression sickness (DCS), also referred to as Caisson disease
  • barotraumas (tissue damage due to increased pressure), or
  • pulmonary overinflation syndromes (trapping of gases in lungs, with potential for rupture of alveoli leading to arterial gas emboli).
Note:  Long-term effects resulting in chronic disabilities are more likely to result from saturation, rather than non-saturation, diving.

IV.ii.2.K.5.b.  DCS and AGE

In DCS, nearly all symptoms are present within 24 hours after the dive while some may occur within 3 hours.  While many signs and symptoms resolve rapidly if treated within minutes of onset, permanent injury or disability may result even with treatment.  Arterial gas emboli (AGE) are inert gas bubbles that form in the venous blood during decompression and can lodge in coronary, cerebral, or other arteries in the body with potentially catastrophic results.
DCS is divided into two types, depending on the symptoms involved, and some divers experience both types.  The table below describes some, but not all, of the symptoms and potential chronic effects of DCS and AGE.
Diving-Related Disability
Symptoms
Potential Long-Term Effects
Type I DCS
Musculoskeletal and skin symptoms constituted by pain mainly in the arm and leg joints, and/or itching, mottling, and rashes of the skin.
  • Dysbaric osteonecrosis, and
  • chronic skin conditions
Type II DCS
Symptoms involving the brain, spinal cord, and organs of special sense.  Other symptoms include visual disturbances, altered mental status, respiratory symptoms, thrombus formations, or hypovolemic shock.  Coma and death occur in the most extreme cases.
  • Any neurological deficit to include partial or complete paralysis, muscle weakness, sensory deficits, coordination difficulties, and cognitive deficits
  • hearing loss
  • vertigo
  • tinnitus
  • vision impairment, and
  • disequilibrium.
AGE
Rupture of pulmonary alveoli, which allows gas from the lungs to enter into arterial circulation.  This may result in stroke, seizure, central nervous system effects, or myocardial infarction.
Residuals such as stroke or myocardial infarction will result in chronic residuals.

IV.ii.2.K.5.c.  Toxic Effects of Gases in Diving

The table below describes the conditions and associated symptoms that may be due to the toxic effects of gases when diving.  Chronic disabilities may result from these responses to diving.
Condition
Symptoms
High pressure nervous/neurological syndrome (HPNS)
Dizziness, nausea, vomiting, tremors, incoordination, fatigue, somnolence, myoclonic jerking, stomach cramps, decreased intellectual performance, and disturbed sleep.
Nitrogen narcosis (also called “narcs” or “rapture of the deep”)
Resembles alcohol intoxication, with euphoria, confusion, irrational behavior, paranoia, and hallucinations.  May result in coma.
Oxygen toxicity
Muscle twitching, seizures, vision and hearing problems, and pulmonary problems such as cough or substernal burning.
Carbon dioxide toxicity
Respiratory impairment, headaches, unconsciousness, or other neurological impairment
Atmospheric contaminants
Acute toxic effects or subtle, unrecognized long-term toxicity

IV.ii.2.K.5.d.  Potential Long-Term Effects of Diving

Many other long-term effects may result from diving, with or without incurrence of DCS.  The table below lists some, but not all, of the disabilities that may be associated with a history of diving.
Body System
Possible Disabilities
Musculoskeletal
Bone infarcts (dysbaric osteochondrosis), osteoarthritis
Skin
Eczema, infection
Ear
Chronic otitis externa, hearing loss, perforated eardrum, vestibular problems, tinnitus
Neurological
Stroke, seizures, paralysis, weakness, peripheral neuropathy, autonomic symptoms, cognitive deficits
Visual
Scotomas, diplopia, vision loss
Respiratory
Airflow obstruction
Cardiovascular
Myocardial infarction, arrhythmia, cold and heat injuries
Psychiatric
PTSD

IV.ii.2.K.5.e.  Rating Residuals of Diving Injuries

In rating residuals of a diving injury, 38 CFR 4.71a, diagnostic code (DC) 5011, Caisson disease of, is often used as it is the only DC specific to diving residuals. 38 CFR 4.71a, DC 5011, directs that Caisson disease should be rated as arthritis, cord involvement, or deafness.  However, numerous other disabilities outside of those explicitly identified under 38 CFR 4.71a, DC 5011, may result from a diving injury and may be SC on the basis of a residual of a diving injury.  In service connecting any disability due to diving, use DC 5011 hyphenated with the appropriate code used for the disability evaluation.  For example, eczema due to a diving injury would be rated as DC 5011-7806.
Important:
  • Many conditions will be reported in the service treatment records; however, some, such as bone infarcts or arthritis, do not appear immediately and may not have been reported in service.
  • If there is a history of in-service diving, a diving etiology should be considered for such conditions as a bone infarct or arthritis (especially of the hip or shoulder), hearing loss, other ear or labyrinthine abnormalities, neurological conditions, and skin disorders.
  • Veterans who did saturation diving during the approximate time frame of the 1960s – 1980s were at greater risk for long-term health effects as they worked under different circumstances than current military divers, who have improved techniques and safety measures.

IV.ii.2.K.5.f.  Examinations and Medical Opinions

An examination with medical opinion is needed for a claim for SC for residuals of diving if there is not sufficient competent medical evidence to decide the claim, but the record contains
  • competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability
  • evidence that the Veteran has a history of diving in service or incurred a diving-related injury in service, and
  • an indication that the claimed disability or symptoms may be associated with in-service diving or a diving-related injury.
Submit complex or unusual questions related to a claim for disability compensation on the basis of diving or a diving-related injury to the Director, Compensation Service (211B) for an advisory opinion.
References:  For more information on
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